9 F.

3d 117
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Kenneth JOHNSON, Petitioner-Appellant,

v.
Ron CHAMPION, Respondent-Appellee.
No. 93-5018.

United States Court of Appeals, Tenth Circuit.

Oct. 19, 1993.
1

Before LOGAN and BRORBY, Circuit Judges, and KANE,** District Judge.

ORDER AND JUDGMENT1

2

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Petitioner-appellant Kenneth Johnson was convicted in Oklahoma state court of

first degree rape after former conviction of a felony. He brought a 28 U.S.C.
2254 petition for writ of habeas corpus, alleging ineffective assistance of
counsel. He appeals from the district court's denial of the petition. We affirm.

At petitioner's trial D.M.B. testified that petitioner, whom she knew through her
son, came to her house around 9:00 p.m. on August 14, 1980. He told her he
had been in a car accident and hurt his hand. She washed and bandaged his
hand. After trying unsuccessfully to telephone someone to pick him up, he
raped D.M.B. He then made another telephone call and told someone to pick
him up at 11th and Garnett. He left at about 10:00 p.m.

D.M.B. washed the bloody linens in cold water. She reported the attack to her

personal physician the next morning. He examined D.M.B. and observed

swelling and bleeding which he thought was evidence of forceful entry of the
vagina. However, he did not perform a rape examination or preserve evidence
because he was unable to introduce any type of instrument internally due to
pain and swelling.
6

Petitioner testified at his trial that he had an auto accident sometime in August
1980 near his friend, Susie's, house. He went to her house and made some
telephone calls. He then walked to a U-Tote-M on Garnett where he called his
aunt and uncle. They picked him up on 21st and Garnett and took him to his
parents' home. He cut his hand on a beer bottle at the U-Tote-M. He denied
going to D.M.B.'s house that evening or raping her, although he admitted that
his accident occurred a few blocks from her house. He did not know how
D.M.B. knew that he had a car accident except that it was common knowledge
in the neighborhood.

Petitioner's brother, Jerry Johnson, testified at trial that he saw petitioner at 9:00
p.m. at their parents' house the night petitioner wrecked his car, sometime in
August 1980. He (Jerry) stayed at his parents' house until 9:30 p.m., then took
petitioner to 11th and Garnett to get his car. He noticed that petitioner had cut
his hand.

Petitioner was found guilty and sentenced to ninety-five years' imprisonment.

His conviction was affirmed on direct appeal. His first federal habeas action
was dismissed without prejudice for failure to exhaust state remedies.

Petitioner filed a state application for postconviction relief claiming ineffective

assistance of counsel. The state trial court denied the application, but the state
appellate court reversed and remanded for an evidentiary hearing. Following
that hearing the state trial court made findings, concluded that petitioner was
not denied effective assistance of counsel, and denied the application. The state
appellate court affirmed. Petitioner's second state application for postconviction
relief was denied.2

10

Petitioner commenced the present action for federal habeas corpus relief in
August 1991, claiming ineffective assistance of counsel. Without holding an
evidentiary hearing, a magistrate judge issued a report and recommendation
adopting the state court findings pursuant to 28 U.S.C. 2254(d),3 and
concluding that petitioner received effective assistance of counsel. The district
court agreed and denied the petition.4

11

To prevail on an ineffective assistance of counsel claim, a habeas petitioner

must show both that counsel's performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). The first prong of the Strickland test requires a showing that
counsel's errors were so serious counsel "was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment," id., that is, "counsel's
representation fell below an objective standard of reasonableness," id. at 688. In
evaluating counsel's performance, we must "indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.'
" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

12

The second prong of the Strickland test requires a showing that "counsel's
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable." Id. at 687. The defendant must show "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.

13

The state court's conclusion that counsel provided effective assistance is not a
finding of fact binding on the federal courts to the extent stated in 28 U.S.C.
2254(d). Id. at 698. "Although state court findings of fact made in the course of
deciding an ineffectiveness claim are subject to the deference requirement of
2254(d) ... both the performance and prejudice components of the
ineffectiveness inquiry are mixed questions of law and fact." Id. We review
these determinations de novo. United States v. Owens, 882 F.2d 1493, 1502
n.16 (10th Cir.1989).

14

Petitioner contends he should have been afforded a hearing in federal court.

Where the facts are disputed, the federal district court must hold an evidentiary
hearing on a habeas petition if the petitioner did not receive a "full and fair
evidentiary hearing in a state court." Townsend v. Sain, 372 U.S. 293, 312
(1963), overruled in part on other grounds, Keeney v. Tamayo-Reyes, 112 S.Ct.
1715, 1717 (1992). Petitioner argues he was entitled to another evidentiary
hearing because the state court's findings are erroneous. As will be explained
more fully below, we conclude the state court findings are not erroneous. That
those findings conflict with testimony provided by petitioner's witnesses does
not mean the findings are erroneous or the hearing was inadequate.

15

Petitioner also appears to challenge the adequacy of the state court evidentiary
hearing because his trial counsel, Frank Laphen, was not called as a witness at

that hearing. However, the parties represented to the state court that Laphen
had no independent memory of the case but made notes, and they would
proceed with that understanding. Petitioner personally and through counsel
stated that was agreeable to him. Neither party called Laphen as a witness.
Thus, petitioner has not shown he was denied a full and fair hearing in state
court.
16

Petitioner contends that Laphen was ineffective because he failed to interview

several potential witnesses and failed to call several alibi witnesses to testify at
trial. At the state court evidentiary hearing petitioner presented the testimony of
Susie Barolin, Virgil Teague, Peggy Lou Johnson, and Tabitha Johnson, none
of whom were called as witnesses at trial. Barolin testified that petitioner was at
her house the day of the assault. She does not remember when he left but
thought it was after dark. He returned a little while later because he had done
something to his car.

17

Petitioner contradicted Barolin's testimony, claiming he left her house before

dark. Barolin's assistance as an alibi witness is therefore questionable. We
conclude there are no grounds under 2254(d) for disregarding the state court
finding that Barolin would not have been able to provide an alibi.5 The failure
to call her as a witness did not constitute ineffective assistance.

18

Virgil Teague, petitioner's uncle, testified at the evidentiary hearing that

petitioner called him at about 6:00 p.m. on August 14, 1980, from a telephone
booth. Petitioner told Teague he had been in a car accident and hurt his hand in
the accident. Teague picked up petitioner around dusk, and drove him to his
parents' house. They arrived at about 9:00 p.m. Teague left about a half-hour
later. Teague claimed he gave this information to Laphen before trial. Laphen's
notes indicate that he spoke with Teague before trial.

19

The state court found Laphen's notes indicated petitioner called Teague at about
10:00 p.m., and Laphen may have determined that Teague's testimony would
not help the case. At the top of Laphen's notes is Virgil Teague's name.
Underneath Teague's name the notes state "called from Mingo or Garnett-"
with a symbol indicating around or about 10 p.m., and go on to describe the
details of the car accident. R. Supp. Vol. I, State's Ex. 2. While not completely
free of ambiguity, these notes are adequate to support the state court's finding
that Teague told Laphen petitioner called him at 10:00 p.m. Because D.M.B.
testified that petitioner called someone to pick him up and then left her house at
around 10:00 p.m., Laphen reasonably could have chosen not to call Teague as
a witness because Teague would have been unable to establish an alibi.

20

Peggy Johnson, petitioner's mother, testified at the evidentiary hearing that

Teague brought petitioner home at about 9:00 or 9:30 p.m. the night of August
14, 1980. She provided this information to Laphen before trial. Even if this
testimony would have established an alibi, we conclude Laphen's failure to call
Peggy Johnson as a witness did not constitute ineffective assistance of counsel.
The same testimony was presented at trial by Jerry Johnson. Counsel is not
ineffective for failing to present cumulative evidence. United States v. Jackson,
935 F.2d 832, 846 (7th Cir.1991); Brogdon v. Blackburn, 790 F.2d 1164, 116869 (5th Cir.1986), cert. denied, 481 U.S. 1042 (1987); United States v.
Schaflander, 743 F.2d 714, 719 (9th Cir.1984), cert. denied, 470 U.S. 1058
(1985).

21

Tabitha Johnson, petitioner's sister, testified at the state evidentiary hearing that
she remembered petitioner coming home the night of August 14, 1980, but
could not remember when he arrived or left, and admitted she remembered
hardly anything about the night. Petitioner did not prove that Tabitha Johnson
could have established an alibi; thus, the failure to call her as a witness at trial
did not constitute ineffective assistance of counsel.

22

Petitioner lists numerous other potential witnesses whom Laphen did not
interview or call to testify at trial.6 Under most circumstances,7 to establish
ineffective assistance of counsel one must "affirmatively prove prejudice."
Strickland, 466 U.S. at 693. "To affirmatively prove prejudice, a petitioner
ordinarily must show not only that the testimony of uncalled witnesses would
have been favorable, but also that those witnesses would have testified at trial."
Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir.1990). When an
ineffective assistance claim centers on a failure to investigate, "[t]he focus of
the inquiry must be on what information would have been obtained from such
an investigation and whether such information, assuming its admissibility in
court, would have produced a different result." United States ex rel. Cross v.
DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987). Ordinarily, such information
would be presented through the testimony of the potential witnesses. Id. If the
witnesses do not testify, the petitioner must explain why and " 'demonstrate,
with some precision, the content of the testimony they would have given at
trial.' " Lawrence, 900 F.2d at 130 (quoting Cross, 811 F.2d at 1016).

23

Petitioner failed to present the testimony of these potential witnesses at the state
evidentiary hearing, failed to explain why they did not testify at that hearing,
and failed to make a showing at that hearing what their testimony would have
been. Petitioner did not carry his burden of affirmatively proving that Laphen's
failure to call these witnesses prejudiced the defense.

24

Petitioner also claims Laphen was ineffective for failing to present evidence at
trial that D.M.B. had a vendetta against petitioner. Specifically, this evidence
would have established that petitioner and D.M.B.'s son were friends. They
committed a burglary with a third person. D.M.B.'s son was caught trying to
hock the stolen goods. He would not implicate petitioner in the crime, and
received a longer sentence as a result. D.M.B. was angry at petitioner because
she knew he was involved, and threatened to get even. Petitioner made an offer
of proof at the state hearing that D.M.B. followed through on a threat to the
other participant in the burglary by lending him her car and then turning him in
for stealing it.

25

Petitioner testified at the evidentiary hearing that he did not bring out the
evidence because Laphen advised him not to and did not ask questions to elicit
the evidence. Even if petitioner acquiesced in Laphen's advice not to bring out
the evidence, a matter not made clear by the evidence, his consent is only as
good as the advice which informed that consent. See Loe v. United States, 545
F.Supp. 673, 683 (E.D. Va.1982). The critical question is whether that advice
was within the range of competence required of a criminal defense attorney. Id.

26

The district court concluded that Laphen's failure to present this evidence was
within the wide range of professional competence. In evaluating this conclusion
we must keep in mind that petitioner had the burden of overcoming the
presumption that Laphen's conduct might be considered sound trial strategy.
"We need not determine the actual explanation for trial counsel's failure to
[take certain action], so long as his failure to do so falls within the range of
reasonable representation." Morris v. California, 966 F.2d 448, 456 (9th
Cir.1991), cert. denied, 113 S.Ct. 96 (1992).

27

Laphen reasonably could have wanted to keep the jury from learning that
petitioner engaged in criminal behavior in addition to the one prior conviction
petitioner admitted at trial.8 Further, Laphen reasonably could have concluded
the fact that D.M.B. allegedly made the threat two or three years before
August14, 1980, diminished the likelihood that the rape charge was connected
to the threat. We conclude that a tactical decision by Laphen to keep out the
evidence for these reasons would have been reasonable. Petitioner offered no
evidence that other reasons motivated Laphen's actions.

28

Petitioner next contends Laphen was ineffective for not obtaining a transcript of
the preliminary hearing. Laphen's notes showed few discrepancies of any
significance between the preliminary hearing and trial testimony. Petitioner has
not established that Laphen's failure to order a transcript was unreasonable, or

that it prejudiced the defense.

29

Finally, petitioner argues that Laphen was ineffective for failing to strike
prospective juror Sarah Stevenson from the panel after learning that her cousin
had been raped. He claims that at the time of this juror's sitting Laphen had not
used any peremptory challenges. The record is unclear how many challenges
Laphen had used when Stevenson was seated. Assuming Laphen had
peremptory challenges available, petitioner still had the burden of proving that
Laphen's failure to strike Stevenson was not the result of trial strategy. He
offered no evidence to this effect.

30

Nor has petitioner provided evidence that Stevenson was actually biased. 9
Rather, he appears to contend that her bias should be implied. Whether juror
bias may be implied from the circumstances is a question of law. Burton v.
Johnson, 948 F.2d 1150, 1158 (10th Cir.1991). The implied bias doctrine is to
be appliedonlyin

31
'extreme'
situations where the prospective juror is connected to the litigation at issue
in such a way that is highly unlikely that he or she could act impartially during
deliberations ... [such as] where the prospective juror has been the victim of a crime
or has experienced a situation similar to the one at issue in the trial.
32

Hunley v. Godinez, 975 F.2d 316, 319 (7th Cir.1992). We conclude the fact
that a juror had a cousin who had been raped is not the type of extreme
situation from which bias can be implied.

33

Petitioner's request for appointment of counsel is denied. The court on its own
motion waives Fed.R.App.P. 28(g) limiting the appellant's opening brief to fifty
pages.

34

The judgment of the United States District Court for the Northern District of
Oklahoma is AFFIRMED. The mandate shall issue forthwith.

**

Honorable John L. Kane, Jr., Senior District Judge, United States District Court
for the District of Colorado, sitting by designation

This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.
R. 36.3

Respondent conceded that petitioner exhausted his state remedies. R. Vol. I

doc. 5 at 2

Certain state court findings are presumed correct unless one of the factors listed
in 28 U.S.C. 2254(d) applies

The district court did not indicate whether it also adopted the state court's
findings

Petitioner concedes in his brief that Barolin was not the foundation of his alibi.
Aplt's Br. at 59

They are Donna Teague, Valerie Johnson, Joe Johnson, Isaac Johnson, Jimmy
Johnson, Scott Yocum, and Earl Bailey, Jr

This case does not present circumstances under which prejudice could be
presumed. Compare Strickland, 466 U.S. at 692-93

The record indicates that petitioner was arrested on October11, 1975, for
burglary. He was convicted on January 19, 1976, of an amended charge of
knowingly receiving stolen property. Petitioner testified that he met D.M.B.'s
son the spring of 1978. Thus, his 1976 conviction could not have been for
criminal conduct committed with D.M.B.'s son

The jury selection was not transcribed, and Stevenson was not called as a
witness at the state evidentiary hearing